Graham v. 10 Tecumseh, 2015 ONSC 7480

CITATION: Graham v. 10 Tecumseh, 2015 ONSC 7480

DIVISIONAL COURT FILE NO.: 29/15

DATE: 2015/12/02

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Paul Graham o/a Alpine Engineering

Applicant

– and –

10 Tecumseh Ave. West Inc.

Respondent

Self-represented

Todd W. Devitt, for the respondent

HEARD: October 27, 2015

LEITCH, J.

1The respondent seeks an order dismissing the applicant’s appeal or, in the alternative, an order for security for costs of the appeal.

2The applicant is a commercial tenant of the respondent.

3On March 19, 2015 the respondent served a notice of termination and claim for damages based on the fact that rent had not been paid by the applicant for many months.

4The applicant brought a motion for an injunction preventing the respondent from changing the locks and evicting the applicant. This injunction was granted and continued until Miller J. rendered judgment on the respondent’s request for relief from forfeiture.

5As Miller J. stated in reasons released April 24, 2015 at para. 5, “Although not pleaded precisely, I understand the applicant to be seeking relief from forfeiture under the Commercial Tenancies Act, R.S.O. 1990 c. L.7, s. 20, on the basis that there is an agreement between the parties that the rent is not payable until Mr. Graham is successful in litigation that he is pursuing against a third-party.”

6The further issue before Miller J. was the fact that the respondent had asserted that there was an enforceable agreement between the applicant and the respondent which was dispositive of the dispute.

7Miller J. found at para. 22 that, “the applicant has not, on the materials before me, met the burden of establishing on the balance of probabilities that the respondent agreed to defer payment of rent until the conclusion of the third-party litigation over the bus.”

8Further he found at para. 24, “even if I am wrong, however, a binding settlement agreement as alleged by the respondent would be a complete answer to the relief sought by the applicant and would supersede the alleged oral agreement from March 2014.”

9Ultimately, he found at paras. 30 and 31, “that there is a binding settlement agreement on the terms of the letters of December 15 and 16, 2014. As it happens, no payment was in fact made by the applicant, who is in default of a settlement agreement. The consequence is that the respondent was then at liberty to enforce the lease agreement, which it did by issuing the notice of termination on March 19, 2015.”

10As a result, the application was dismissed and the injunction was dissolved.

11It is the decision of Miller J. which is the subject of a proposed appeal by the applicant.

12The applicant brought a motion to stay the decision and for an injunction to be reinstated pending appeal, however, that motion was dismissed by Mitchell J. on May 20, 2015. In her reasons released May 21, 2015 she noted that the time for appealing the decision of Miller J. would expire May 24, 2015.

13The applicant did not file the Notice of Appeal until June 2, 2015. The applicant failed to perfect his appeal within the time period required under r.61.

14The respondent did not proceed to have the appeal dismissed for delay pursuant to r. 61.13 by the Registrar but instead has brought this motion.

15As of the date this motion was heard, the appeal had not been perfected.

16I will consider the issues on this motion by considering the same factors that would be considered if the applicant was seeking an extension of time to either file or perfect his appeal: whether the appellant formed a bona fide intention to appeal within the relevant time period; the length of, and an explanation for the delay in filing; any prejudice to the responding party caused perpetuated or exacerbated by the delay; and, the merits of the proposed appeal: see Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401.

17Although the Notice of Appeal was not served and filed until June 2, 2015 the appellant asserts that it was served and filed in compliance with the rules. To give him the benefit of the doubt, I am prepared to find that he formed a bona fide intention to appeal within the relevant time. The delay in perfecting the appeal is not particularly significant, however, there is really no explanation for that delay. The prejudice to the responding party is the fact that the applicant, a commercial tenant, would remain in occupation of the premises without paying any rent for a considerable period of time if the decision of Miller J. is not acted upon. Finally, I see no merits to the proposed appeal. Miller J. made factual findings based on the record before him. The appeal does not raise an arguable question of law or mixed law and fact and in my view is without merit.

18While the appellant noted that he is appealing the decision dismissing his claim in the “bus litigation”, Miller J. found there was no agreement to suspend the payment of rent until that litigation was concluded.

19Furthermore, according to the terms of the lease between the applicant and respondent, the lease expired June 30, 2015.

20In all of these circumstances, I conclude that the justice of the case does not require an extension of time to perfect an appeal.

21I find that the appeal should be dismissed for delay.

22In all of the circumstances, I am inclined to award costs to the respondent in the amount of $750, the amount provided for under r. 61.12 had a Registrar made an order dismissing the appeal.

“Justice L. C. Leitch”

Justice L. C. Leitch

Date: December 2, 2015